Interview with Louis Malfaro on public-employee bargaining rights

By Robert Jensen

Published in Texas Observer · October, 2000

[This article appeared in the Texas Observer, October 20, 2000, pp. 9, 19.]

The organizing efforts of the University Staff Association have reminded folks that public-sector employees – people who work for state or local governments in Texas – are denied basic rights that are recognized around the world. Article 23 of the Universal Declaration of Human Rights states, “Everyone has the right to form and to join trade unions for the protection of his interests.” The 1998 Declaration on Fundamental Principles and Rights at Work of the International Labor Organization, an independent agency of the United Nations, states that member nations (that includes the United States and, one would assume, Texas) have an obligation “to respect, to promote and to realize, in good faith” four key principles, the first of which is “freedom of association and the effective recognition of the right to collective bargaining.” Why does the state of Texas show such bad faith to its own workers? And what should workers do about it? I explored that question with Louis Malfaro, co-president of Education Austin, the local teachers union.

What rights do public employees in Texas have, and what rights are they denied?

In the state of Texas it is illegal for all but a small number of public employees to collectively bargain; it’s an out-and-out prohibition. To my knowledge, Virginia is the only other state that prohibits that. There are a few narrowly defined exemptions – the right to “meet and confer” that police and firefighters have won – but even their bargaining rights are at the discretion of a city council. Still, that union does represent all the police officers, and the result is a legally binding employment contract.

There are some misconceptions about what collective bargaining is. It means that as a worker you are represented by a union that is charged with negotiating a contract on your behalf. The state’s right-to-work law, which affects public and private employees, prohibits a person from being forced to join a union as a condition of employment; it outlaws closed shops. Those laws impede unions, but you still can have collective bargaining in a right-to-work state, such as Texas. We have many private-sector workers in unions in Texas who have contracts.

The right to strike is a separate issue. In many states, public employees – especially those who perform so-called essential services such as police or fire protection – are prohibited by law from striking but still have the right to collectively bargain.

My union, Education Austin, doesn’t collectively bargain. We meet with school officials to bring forward ideas, proposals, recommendations. It’s an ongoing dialogue process, and we’ve entered into it in good faith, but we can’t negotiate contracts. Teachers in Texas have contracts, but they are stipulated by the State Legislature. We are not at-will employees, as are most public employees. That means they can be fired for any reason, or no reason, so long as it doesn’t violate federal employment law (such as race or sex discrimination).

How would you describe Texas law in regard to public employees?

Texas is a rogue state in terms of respecting people’s basic employment rights in the public sector. Our situation in Texas is an abomination.

Also, it hurts the institutions in which people work. It impedes improvements in the institutions that serve the public. If you look at Texas and the problems in the public sector workforce, such as the teacher shortage that is being felt all over the country but more acutely in Texas, it’s in part because of the wages and benefits are significantly lower here than around the country.

Look at the prison guard situation in this state. People have been outraged at the low level of prison guard salaries. How did things get that way? It’s in part because the workers have no say in this. They don’t have a seat at the table. They don’t have a way to raise concerns, not only about their pay but also about working conditions and salaries. There’s no structure in place for them to talk to the boss.

The same is true at UT. People read the staff demands and see them as reasonable. People say, for example, “Why can’t the university put together a grievance policy?” It’s because there’s no mechanism, no formal dialogue between workers and management through a recognized collective bargaining system, and it hurts the university.

An administrator at UT told me that workers would be best off if they worked with supervisors to cut out the “deadwood” employees and increase efficiency. Cooperation with “enlightened management” is the answer, he said. Should employees believe that?

It’s interesting how management will blame workers for problems that are within management’s purview to solve. It’s the workers’ fault that management has structured the workforce to run inefficiently? If management wants to get rid of deadwood, they can do it. With the exception of tenured professors, employees at UT are at-will, they can be fired.

We can’t ignore the fact that there are clear conflicts between management and labor. Those are not unhealthy conflicts. Management’s responsibility under this system is to produce a product or service efficiently and cost-effectively. But that can become abusive to the worker, when it means cutting wages and stripping people of health benefits. If the purpose [is] to make money, management is likely to squeeze out of a worker as much as possible. There needs to be a countervailing force there.

People say enlightened management won’t squeeze like that. But look at Wal-Mart, the quintessential low-wage corporate strategy, which at one level has worked exceedingly well. The Waltons are doing quite well financially. Wal-Mart stock is doing great. But it isn’t working so well from the perspective from the people who work there. You have stores with a few managers overseeing a lot of part-timers with low wages and inadequate benefits. That’s not in the workers’ interest. It’s clear that management and labor just do not have the same interests.

But there’s a more important point here. It’s possible to have a benign dictatorship. There have no doubt been some nice kings and queens who sometimes treated their subjects with kindness. But those subjects were just that – subjects. We are supposed to live in a democracy, yet for some reason people are willing to check their democratic rights at the door when they get to work.

While it’s true that the Bill of Rights has never been interpreted to mean you can go into your workplace and say whatever you please, it doesn’t mean that we have to be wage slaves. We live in a democracy. Why would we not want the places that we work to be democratic? If working people aren’t allowed to speak, to elect leaders, to build open institutions where they work, we’re in trouble. Look at despots throughout history, whether on the left or the right – one of the first things they go after are free trade unions. Unions are the canaries in the democratic coal mine. Where you don’t have unions or [you instead have] highly regulated state unions, you don’t have democracy. So, what do we say about the state of Texas? What kind of democracy do we have here?

Have public-sector unions devised a strategy for winning collective bargaining rights? If not, why not?

There has not been a highly coordinated effort to win bargaining rights for public-sector employees in Texas. Why? In many instances, unions have chosen to be pragmatic in going for short-term gains rather than having a long-term vision of winning collective bargaining rights for all public-sector workers.

But a problem with that is that some public employees do better than others. Teachers have done fairly well with pay raises lately, because of public concern for teachers. But support workers – custodians and food-service workers – didn’t get the raises. When you rely on public sentiment, some workers are going to win and some will lose.

Working with the Legislature means working with some conservative representatives who don’t support organizing rights but may be willing to support pay raises. The problem is you are working with people who don’t respect your basic rights. So, a union goes in and says, “Sorry we’re a union, but will you give us something anyway?” That’s pandering or pragmatism, depending on how you want to characterize it.

Public employees could have a lot of influence, if they banded together – teachers, police, city and county employees. Our PACs spend money. I don’t think it is unreasonable to make public-employee bargaining rights a litmus test.

Some in the labor movement say we aren’t strong enough yet and need to build toward that, and I agree with that. But if you aren’t putting out that key demand in public, you’re hurting yourself in the long run and you’re giving the elected officials a free ride. We need to go to those legislators and ask why they will not support our right to a negotiated contract. But there has been a reticence and a fear of alienating so-called moderate legislators who might otherwise throw us a bone.

My feeling is that until public-sector workers and unions band together and say to elected officials, “Until you support our right to organize, we won’t support you,” we will continue to collectively beg instead of bargain.